Governor Milliken’s official portrait graced the cover of his public memorial service at the Interlochen Center for the Arts on August 6.
By Dave Dempsey
In the flurry of news coverage about last week’s memorial service for the late Governor William Milliken, there was plenty of talk of days gone by.The Governor left office 37 years ago, and it sometimes seems as though moderation, civility and environmental ethics left office with him.
But focusing on that would be the wrong takeaway. The Milliken example is a model for today, not a relic of yesterday.
All five speakers at the service, including Milliken’s longtime advisor Bill Rustem and Governor Gretchen Whitmer, struck the right note—a celebration rather than a sad farewell.
Public consciousness is again growing of the need to stabilize our climate, protect fresh water, and conserve vital habitat.But we cannot wait for another Milliken or Teddy Roosevelt to convert that consciousness into positive change.
Instead, it is time for us to lead—and the political so-called leaders will follow.I think Governor Milliken would approve of renewed citizen activism to meet the challenges of our time.
Called for by Gov. Whitmer last year, the standards set maximum limits for the seven PFAS compounds. Known as “forever chemicals” because they break down slowly in the environment, PFAS have emerged as a national issue as more and more contamination sites are found. Two of the most serious hotspots in Michigan aresites associated with Wolverine Worldwide in Kent County and the former Wurthsmith Air Force Base in Iosco County.
“It is imperative for Michigan to promulgate the proposed rules as soon as practicable,” said FLOW Executive Director Liz Kirkwood. “Testing continues to turn up new sites of PFAS contamination in Michigan, many of them exposing citizens to substantial health risks. Federal rules are likely years away and may not provide the level of protection that the people of Michigan want and need for public health and the environment.”
The standards apply to approximately 2,700 public drinking water supplies across the state and will be enforced by the state Department of Environment, Great Lakes, and Energy (EGLE). FLOW and other organizations have strongly supported the state standards in the absence of binding, enforceable drinking water standards set by the U.S. Environmental Protection Agency.
PFAS have been used in thousands of applications globally, including firefighting foam, food packaging, non-stick coatings, stain and water repellents, and many other consumer products. PFAS compounds have been linked in scientific studies to:
Reducing a woman’s chance of getting pregnant
Increasing the chance of high blood pressure in pregnant women
Increasing the chance of thyroid disease
Increasing cholesterol levels
Changing immune response
Increasing the chance of cancer, especially kidney and testicular cancers.
“Governor Whitmer and EGLE deserve tremendous credit for taking this important first step in protecting Michigan residents from PFAS in their drinking water,” said Cyndi Roper, Michigan Senior Policy Advocate for the Natural Resources Defense Council. “Michigan is now regulating seven PFAS chemicals—which is more than any other state—and two of the standards are the nation’s most health protective. However, several of the new PFAS standards should have been more health protective based on the existing science.”
Roper added: “Further, even if we set standards for seven PFAS chemicals each year, it would take far too many generations to protect residents from the health impacts of these chemicals. Instead of playing regulatory whack-a-mole, Michigan should set a treatment technique that is most effective at cleaning up all known PFAS from drinking water.”
PFAS present a significant risk to human health. They break down slowly in the environment, can move quickly through the environment, and are associated with a wide array of harmful human health effects including cancer, immune system suppression, liver and kidney damage, and developmental and reproductive harm.
By Peggy Case, President, Michigan Citizens for Water Conservation
Rarely does a ruling by a state Administrative Law Judge overturn a permit issued by a state agency. In the contested case hearing on the Nestlé permit to withdraw more than 500,000 gallons of water per day from a White Pine Springs well near Evart, Michigan Citizens for Water Conservation (MCWC) and the Grand Traverse Band of Ottawa and Chippewa Indians (GTB) had hoped the administrative law judge would reverse the former Snyder administration’s unwarranted permission for Nestlé’s permit.
But on April 24, the administrative law judge in the case before the Michigan Department of Environment, Great Lakes and Energy (EGLE) issued a proposal for decision that would uphold the permit, and recommended that Liesl Clark, Director of EGLE, render a final decision in Nestlé’s favor. Fortunately, the decision is only a proposal, and our attorneys have advised us that MCWC and the Grand Traverse Band have a right to file exceptions.So we are urging Director Clark and the Whitmer Administration to reject the footloose interpretation of Michigan’s water laws for Nestlé to sell another 210 million gallons of bottled water per year from the headwaters of our lakes and streams.
The proposal from the judge is full of errors and interpretations and relies on a model based on assumptions, not actual calculations of the effects, that tipped the cup toward Nestlé. We intend to demonstrate these errors through the filing of exceptions as provided by law. We trust Director Clark and the administration will reject the permit, and follow the legal duty resting with EGLE to apply our water law standards strictly, the way they were intended.
This proceeding and case started with the Snyder Administration’s Department of Environmental Quality when it granted the permit in April 2018, despite compelling legal arguments and massive public opposition. Today, we have new leadership and a new Director at the helm of EGLE.
The Governor and Attorney General campaigned on a promise to change the way we do business in Michigan when it comes to protecting water resources and promoting water justice. Unfortunately, to date, the administration through EGLE and the Attorney General’s office has continued to defend the Nestlé permit and filed a brief asking to throw out our contested case and grant the permit. This is difficult to comprehend when we consider that in the spring of 2017, 600 people opposed to the permit drove or took buses from all over the state to attend the hearing. Citizens submitted more than 80,000 comments opposing that permit in the first place.
We know this Administration can do better in support of the voters, the water, and the damaged ecosystem in Osceola Township. It can do better than ignore the injustice in Flint where many households are still not assured of clean, affordable tap water. It can do better than give away another 210 million gallons of water a year to Nestlé while thousands of homes in Detroit still do not have running water.
In 2005, in relation to a lawsuit MCWC filed in Mecosta County in 2000, a Michigan appeals court upheld the science and law that 400 gallons per minute from a well in a Michigan glacial headwater spring, wetlands, or creek system causes substantial harm. The court did so because date before, during, and after pumping on the withdrawals and pumping rates showed a direct correlation of pumping at 200 to 400 gallons per minute and drops in flows and levels and serious impacts. But when the 2018 permit was issued, the data was lacking, and what data existed was not used to calculate effects but fed into a computer model targeted to find little harm.
By filing the exceptions and legal brief with the Director, we are urging her to conduct an independent review of the facts and loose interpretations, and overturn a permit that was based on twisting those facts and the law to favor private gain at the expense of our public water.
MCWC and the GTB ask the Whitmer administration, the Attorney General and Director Clark to return state government to respecting the paramount duty of our state leaders to protect our state’s water and live up to the public trust responsibilities granted by our State Constitution and water laws.
We expect the Attorney General and the Director of EGLE to take this opportunity, presented to them by our persistent work, to actually look at the record and the laws in question and do what is right for the people and our precious waters. We expect them to withdraw this permit for Nestlé’s water grab and direct their energies to repairing the injustices of lack of affordable water access in communities such as Detroit and Flint.
Note from FLOW: To support MCWC’s vital work to protect our public trust waters from privatization and commercialization, click here.
Jim Olson is FLOW’s Founder, President, and Legal Advisor
Jim Olson spoke last week at Columbia University’s Lenfest Center for the Arts in a program titled “Water Activism: Detroit, Flint, and the Great Lakes”. Photo by Michael DiVito
By Jim Olson
Several newspapers recently reported on another 23,000 water service shutoffs of residences in Detroit whose occupants cannot afford to pay their excessive water bills, bringing the total to well over 100,000 shutoffs since 2014. The city has forced shutoffs of residential water for drinking, cooking, bathing, and sanitation ostensibly to improve the balance sheet of Detroit during and after its municipal bankruptcy.
And there’s no end in sight.
Late last week, state of Michigan officials rejected a request from Detroit residents and the American Civil Liberties Union to declare an emergency and stop the water shutoffs on the grounds that residents couldn’t scientifically prove there was a public health threat or crisis.
Clearly water service to these customers should be restored immediately. Not only was the rejection wrong on moral grounds, it also should never have been the residents’ burden to prove life without water is a crisis.
Putting the onus on citizens to prove harm ignores the reality of a person’s inherent right to access the sovereign or public waters of the state for drinking water, sanitation or health, and sustenance. The waters delivered by the City of Detroit’s Water Board are withdrawn, treated, distributed, collected, treated as sewage, and returned to Lake Huron and the Detroit River. These navigable waters are public and subject to what is known as the Public Trust Doctrine.
Michigan, like every state, took title to the waters of the Great Lakes and soils beneath them, as sovereign and in public trust for the people, on admission to the Union in 1837. Under this Public Trust Doctrine, the State of Michigan and its officials have a solemn, perpetual duty to prevent impairment or interference with the right of the public to use these waters for certain protected public trust purposes.
Under the Public Trust Doctrine, each citizen, as a legally recognized beneficiary under the decisions of the Michigan Supreme Court and U.S. Supreme Court, has a right to access these waters for navigation, fishing, sustenance, including drinking water and growing and preparing food, bathing (more accurately described as sanitation), and swimming. Before the City of Detroit established a public water supply system in the late 1800s and early 1900s, residents depended on groundwater, Lake St. Clair, or the Detroit River.
As the city grew, the public water supply system expanded. In order to assure the costs of this expanded system were covered, Michigan passed a law requiring residents and occupants of the service area to shut down existing private wells and hook up to the system and prevented them from exercising their property right to reasonable use of the groundwater or navigable waters.
But their fundamental right to access and use these public waters was not denied, nor could it be. The public rights to use these public trust waters for navigation, fishing, drinking, food, and sanitation are paramount and can never be repealed or impaired. Detroit, like other cities and towns, withdraws and delivers public water as a service through its municipal water supply system as a substitute system for the water residents once obtained through their reasonable use of groundwater.
The public trust water that enters and flows through, and is discharged back into, Lake Huron or the Detroit River does not lose its public trust status just because it enters a pipe. The pipe and every aspect of the public water system backed by citizen ratepayers and the full faith and credit of the state (bonds, taxes, and other revenues) remains subject to the Public Trust Doctrine.
Under the Public Trust Doctrine, not only does government have a legal duty to protect and provide access for these paramount public trust uses of residents and citizens, but the burden of proof is not on the residents of Detroit or citizens of Michigan for access to water for drinking, food, and sanitation. The burden is on the government, that is the trustees, or any other person or institution who seeks to deny or deprive a resident of these paramount public trust rights. The solemn duty was on the state and city officials, not the residents. And, it remains forever so.
Since when is the burden of proof on residents to prove a health crisis to get a drink of water from the tap in their home? By refusing to grant relief to tens of thousands of residents in Detroit, the state has effectively deprived citizens of their rights under public trust law.
Once we see and understand this situation is a matter of the public trust law, it can be understood that citizens don’t have to prove to the state under public health statutes that there is a public health emergency. Legally and morally, it is the other way around. State officials have a mandatory duty to provide access to these public trust waters for drinking, food, and health. As trustee of the waters of Lake Huron and the Detroit River, state officials have sovereign control and power to assure water is provided without risks of health to residents.
Bottom line: The state has a duty to turn the water back on.
To refuse to do so because of some narrow statutory interpretation under a public health law, rather than fulfill its duty under public trust law, perpetuates the emotional trauma, risks, turmoil, and discrimination thrust on residents who should be treated like every other citizen when it comes to our common public waters. If the state does not turn on the water through its overarching role as trustee of the public trust waters of the state, the public trust duty has been violated.
What we need to do as a state, and as a civilized society, is to recognize and affirm this public water, this Public Trust, and start acting differently.
First, turn the water back on and provide a necessary minimum amount of 7,000 gallons a month—like Santa Fe, New Mexico, does—at a low rate everyone can pay; increase rates on all who use more than this amount, and move residents off a rate system that spreads the cost on resident ratepayers. The current system is obsolete.
With the slashes in federal grant and low interest infrastructure funding, the need for billions in repairs of systems that have been allowed to deteriorate, new demands from climate change effects, and dwindling customer populations with wages that lock them in poverty, it is time we start with the reality that the waters of the state are public for all of us, and assure that we provide water services shared by everyone in Michigan.
Public water is not about the “bottom-line,” it is about serving the public with safe water for drinking, food and health under the Public Trust Doctrine.
In addition to moving off a purely ratepayer based system in each city or town in favor of a state-wide responsibility for all of us to assure access to public water, we should pass a version of FLOW’s Public Water, Public Justice model law, which we released in September 2018. This policy will shift the burden and create flexibility for water boards to set prices in tiers, authorize affordability plans, and assure a certain amount of water is provided to each citizen shared by all citizens.
Then, because all water in the state is public, not private, the free lunch or massive subsidy to bottled water companies must end. Presently, bottled water companies convert the use of water into a sale of water, with huge profits not shared by the citizens of Michigan. Some companies, like Dasani or Aquafina, receive the water by tapping into a municipal or public water supply system. Other companies like Nestlé simply set up a system of large-volume pumps and withdraw public water from groundwater or springs that feed our lakes and streams; these companies pay a nominal fee to process applications and administer permits that seek to regulate environmental impacts, but they pay nothing for the public water that garners them hundreds of millions of dollars in profits.
The profits of bottled water companies constitute a massive subsidy to a few private corporations directly off the backs of all other ratepayers, taxpayers, and citizens of Michigan.
Then start requiring bottled water companies to obtain a license. If we allow the sale of water at all, under stringent impact and accounting standards, these companies should pay a royalty or fee to sell, not just use, our public water. Those royalties should be placed in a trust fund for public water and social justice needs of our cities, towns, and villages, and provide an open, participatory, transparent, and accountable means to right this inequity by assisting communities and citizens with the most critical needs. After all, when it comes to our shared public water, we are all citizens of Detroit.
Meeting a January 31 deadline for public comment, FLOW urged state officials to adopt standards protecting the health of Michigan residents from PFAS chemicals detected in drinking water supplies serving 1.9 million residents.
FLOW also appreciates the 42 people who responded to a FLOW alert and submitted their own PFAS comments to the state.
Joining a broad coalition of environmental, public health and grassroots citizen organizations, FLOW told the state Department of Environment, Great Lakes and Energy (EGLE) to adopt the proposed science-based standards. They would put Michigan among the leading states moving ahead to protect residents from these long-lasting toxic chemicals.
“It is imperative for Michigan to promulgate the proposed rules as soon as practicable,” FLOW wrote. “Testing continues to turn up new sites of PFAS contamination in Michigan, many of them exposing citizens to substantial health risks. Federal rules are likely years away and may not provide the level of protection that the people of Michigan want and need for public health and the environment. We applaud Governor Whitmer and the Michigan Department of Environment, Great Lakes and Energy (EGLE) for your initiative to address the problem head-on.”
David Long, head of Environmental Solutions LLC, wrote last week in a blog post on FLOW’s website, “Studies show evidence of adverse health effects from exposure to PFAS chemicals. PFAS chemicals persist in the body for a long time and can accumulate. In laboratory animals, researchers found that PFOA and PFOS can cause reproductive, developmental, liver, kidney, and immunological effects.
“Consistently elevated cholesterol levels have been found in people with detectable levels of PFOA or PFOS. Lower infant birth weights, immune system effects, cancer (PFOA), and thyroid disruption (PFOS) have also been associated, albeit less frequently, with PFOA or PFOS.”
In addition to supporting the general outline of the standards, FLOW urged EGLE to:
Require a review of the rules in two years to take into account emerging science;
Require frequent monitoring of public water supplies to learn more about seasonal patterns and sources of PFAS;
Strengthen protection of infants and children.
Governor Whitmer has said she hopes the rules can be made final by summer.
Actress Amy Smart and comic book writer, screenwriter, and film and television producer Geoff Johns urge Michigan Governor Gretchen Whitmer to protect our Great Lakes and shut down Enbridge’s Line 5 oil pipeline in the Straits of Mackinac, where Lake Michigan meets Lake Huron.
Amy: Hi, I’m Amy Smart.
Geoff: Hi, I’m Geoff Johns.
Amy: And we’re here to urge you, Governor Whitmer. We’re so excited that you are the governor of Michigan, and we’re so excited that you believe in the Great Lakes and keeping them clean. We both grew up — you grew up in Michigan.
Geoff: I grew up in Michigan. I have a lot of family still in Michigan. I love Michigan, and Michigan is known for its lakes. It’s the Great Lakes State, and there is nothing more important than those lakes to the whole state and the people in it.
Amy:Yes, nothing more important. I now am a resident of Michigan, and we really need your leadership more than anything to shut down Pipeline 5. It’s way too risky, and it would be completely catastrophic if anything happened, so it’s urgent right now that you do that. We also would highly recommend not letting Enbridge build a tunnel because we don’t need any oil problems in our lakes at all.
Geoff:We don’t want to risk it, and we know you’re in a really tough situation right now, but we ask you to please use your judgment and make the right call. Thank you!
FLOW Statement on Negotiations Between Gov. Whitmer and Enbridge on Line 5 Tunnel, Pipeline
Traverse City, Mich. –FLOW (For Love of Water) issued the following statement on the disclosure that Gov. Gretchen Whitmer and Enbridge Energy will discuss expediting construction of an oil tunnel beneath the Straits of Mackinac while the company’s troubled Line 5 pipelines continue operation in the Straits:
“We are concerned about this development. Every day that the Line 5 pipelines continue to operate is a risk to our precious Great Lakes,” said FLOW executive director Liz Kirkwood. “State government’s efforts should first and foremost be devoted to shutting the pipeline down, not negotiating its continued operation while a tunnel is explored and possibly built.
“Now that the Governor has chosen to engage in this process, we hope and trust it will be a transparent one. It is unfortunate that her predecessor engaged in secret talks on agreements with Enbridge, and the lame-duck Legislature was so eager to benefit Enbridge that it passed a sloppy statute that the Attorney General ruled unconstitutional. We are confident this Governor will operate differently,” Kirkwood said.
“We are also hopeful that the Governor will restore and apply the rule of law to Enbridge’s operations in the Straits. Any easement or lease of Great Lakes bottomlands and any private control for a 99-year tunnel by a private company like Enbridge for a private operation must be authorized under the Great Lakes Submerged Lands Act (GLSLA),” said Jim Olson, President of FLOW.
“The GLSLA ensures a public review, analysis, participation, and a determination under standards that protect the public trust in the waters of the Great Lakes and the soils beneath them from privatization and impairment. It also ensures a thorough evaluation of feasible and prudent alternatives, including ones that do not involve use or control of the Great Lakes. No agreement between the executive branch and a private company can override this fundamental law,” Olson said.
Once upon a time, state environmental agencies operated for decades under the same name, providing continuity and tradition — but perhaps failing to meet evolving needs.
The Michigan Department of Conservation operated for nearly 50 years, beginning in 1921, a period of rapid growth in the state forest and park system and the gradual adoption of pollution control measures by commissions and boards. That changed in 1970 when, by executive order, then-Governor William Milliken united natural resources and environmental programs under one roof and called it the Department of Natural Resources. This structure, in turn, lasted a quarter century.
In 1995, then-Governor John Engler divided the natural resources and environmental programs again into a Department of Environmental Quality and DNR. In 2009, then-Governor Jennifer Granholm united them under the banner of the Department of Natural Resources and the Environment. And in 2011, then-Governor Rick Snyder cleaved them again in two.
This month — on Earth Day, April 22 — the latest reorganization takes effect. Governor Gretchen Whitmer has created a Department of the Environment, Great Lakes, and Energy (EGLE) to coexist with the DNR. It’s the most ambitious of all the natural resource agency reorganizations.
The order says, “State government needs a principal department focused on improving the quality of Michigan’s air, land, and water, protecting public health, and encouraging the use of clean energy. That department should serve as a full-time guardian of the Great Lakes, our freshwater, and our public water supplies.” It is unprecedented for energy to be a major priority of the state’s environmental agency.
The order contains several unique features and innovations:
An Environmental Justice Public Advocate to, among other things,“accept and investigate complaints and concerns related to environmental justice within the state of Michigan.”
A Clean Water Public Advocate to handle complaints and “assist in the development, and monitor the implementation, of state and federal laws, rules, and regulations relating to drinking water quality.”
An Office of Climate and Energy to “provide insight and recommendations to state government and local units of government on how to mitigate climate impact and adapt to climate changes.”
These three focal points respond to specific environmental disasters and neglect of the previous administration, most notably the Flint drinking water tragedy, but they should have statewide impact, redirecting the new agency toward its most critical challenges.
Any new agency must establish new traditions and provide a face to the world. The old DNR was seen as both strong on resource protection and occasionally arrogant in its relations with the public. It’s to be hoped that the new EGLE (along with a reinvigorated DNR) emphasizes the former and shuns the latter. If it does, the Governor will have done the state, and future generations, a considerable favor.
In the wake of an opinion by Attorney General Dana Nessel invalidating a law that sought to give away Great Lakes public trust bottomlands to Enbridge for 99 years for a private oil tunnel, Governor Gretchen Whitmer has now ordered state agencies to pause permitting on Line 5, an action hailed by FLOW (For Love of Water), a Great Lakes law and policy center based in Traverse City.
“We welcome the Governor’s swift, prudent action to halt the legal effect of the law and tunnel and side agreements,” said Jim Olson, founder and president of FLOW. “Now, it’s time to bring the existing perilous Line 5 in the Straits under rule of law and decommission it as quickly as possible.”
“The backroom deals creating Enbridge’s proposed oil tunnel couldn’t survive public scrutiny, and now we know they can’t survive the rule of law,” said Liz Kirkwood, Executive Director of FLOW. “It’s time to focus on Michigan’s true energy future and protect Michigan’s Great Lakes and our economy from a Line 5 pipeline rupture. The path forward for Michigan is for Gov. Whitmer to immediately begin the process of decommissioning Line 5 in the Straits of Mackinac.”
Governor Whitmer’s directive Tuesday to the Department of Environmental Quality to develop an enforceable state drinking water standard for toxic PFAS chemicals is a welcome step. It signals that her Administration believes the health of Michigan citizens and the environment is not something to be left to foot-dragging federal officials, and that she is actively engaged in combating this threat.
“All Michiganders deserve to know that we are prioritizing their health and are working every day to protect the water that is coming out of their taps,” Whitmer said.
“As a result, Michigan will begin the process to establish PFAS drinking water standards that protect public health and the environment. Michigan has long advocated that the federal government establish national standards to protect the nation’s water from PFAS contamination, but we can no longer wait for the Trump Administration to act.” She set a deadline of October 1, 2019 for the standards.
PFAS compounds are a group of emerging and potentially harmful contaminants used in thousands of applications globally including firefighting foam, food packaging, and many other consumer products. These compounds also are used by industries such as tanneries, metal platers, and clothing manufacturers.
The state oversaw the sampling of 1,114 public water systems, 461 schools that operate their own wells, and 17 tribal water systems. Levels of PFAS below 10 parts per trillion (ppt) were detected in 7 percent of systems tested. PFAS levels between 10 and 70 ppt were detected in 3 percent of systems tested.
“PFAS are extremely toxic ‘forever chemicals’ contaminating far too many Michiganders’ tap water. By pushing for strong standards, the Governor is taking an important step to protect public health — but residents, particularly children and pregnant women — are being hurt by this chemical today. Fast action is needed to protect the state from the mounting health crisis caused by widespread drinking water contamination,” said Cyndi Roper, Michigan Senior Policy Advocate for the Natural Resources Defense Council.
The announcement was also important because once the federal government finally acts, a bad law passed by the Michigan Legislature in last year’s lame duck session could complicate the state’s efforts to set a protective standard. That bad law prevents Michigan from adopting standards more protective than federal limits unless the state can show “clear and convincing” evidence that it is needed, a high legal bar. By acting before a federal limit is in place, the state can use the best science to set a protective standard.